Frontier S. S. Co. v. Central Coal Co.

KOHRSAAT, Circuit Judge (after stating the facts as above). It is appellant’s contention that the receipt of the bills of lading by ap-pellee and its acceptance of the two cargoes of coal covered thereby created an absolute liability on appellee’s part to pay the freight charges to appellant. It is also contended that appellee is liable for the freight as consignor. It is no doubt the general rule that the fact that a consignee named in a bill of lading received by him which provides that the cargo is to be delivered upon his paying the freight, who accepts the goods described therein, is evidence sufficient to establish an implied promise to pay the freight charges to the carrier or shipowner, [33] in the absence of other qualifying circumstances. . Philadelphia R. R. Co. v. Barnard, Fed. Cas. No. 11,086; Hatch v. Tucker, 12 R. I. 501, 34 Am. Rep. 707. In the latter case, after reviewing the authorities, both English and American, the court concludes that: “Tlie weight of authority, therefore, seems to be that where there is a bill of lading, and the acceptance by the consignee is,proven and unexplained, the law will imply a promise to pay freight.” To the same effect is Union Pacific R. Co. v. American Smelting & Refining Co., 202 Fed. 720, 723, 121 C. C. A. 182, citing Hatch v. Tucker, supra; Cock v. Taylor, 13 East, 399; Dougal v. Kemble, 3 Bing 383; Merian v. Funck, 4 Denio (N. Y.) 110; Pelayo v. Fox, 9 Pa. 489; Blanchard v. Page, 8 Gray (Mass.) 281; North German Lloyd v. Heule (D. C.) 44 Fed. 100, 10 L. R. A. 814; Taylor v. Fall River Iron Works (D. C.) 124 Fed. 826; Neilsen v. Jesup (D. C.) 30 Fed. 138; Gates v. Ryan (D. C.) 37 Fed. 154; Davidson v. City Bank, 57 N. Y. 81, 85; Grant & Stone v. Wood, 21 N. J. Law, 292, 295, 47 Am. Dec. 162. And the reason for this rule, as said by the court in Union Pacific R. Co. v. American Smelting, etc., Co., supra, “is that the consignee accepts the goods with knowledge that the carrier looks to him for payment of the transportation charges and waives his lien for them by delivery in reliance upon the consignee’s implied promise, evidenced by his acceptance of the goods, that he will pay the charges.” The same implication arises if there be pio bill of lading, provided the consignee accepts the goods knowing that the carrier expects him to pay the charges. Same case, citing a number of authorities. In either case, the acceptance of the goods under such circumstances constitutes but prima facie evidence of such promise on the part of the consignee. The question then is: Are the bills of lading here involved, notwithstanding the other facts bearing upon that question, to be taken as conclusive evidence of such knowledge on the part of appellee? If not, and the other evidence in the record is considered, it is very clear, not only that appellee had no such knowledge, but also that, so far as the record discloses, there was wanting sufficient notice to advise appellee that appellant, at the time of making delivery of the Munro cargoes in question, had any intention of holding appellee for the freight charges. It is legally deducible from the evidence that appellant was advised of the circumstances attending the whole transaction. Its agent, the Eake Transportation Company, was actually told by Oakes, manager of the Franklin and Fremont Steamship Companies, that those companies had the whole contract for carrying appellee’s coal for that season. As such agent, it received all payments for other cargoes of said coal from those companies. The contract between those companies and the Weston Transit Company discloses the existence of the original contract. Mills, manager of appellant, signed that contract, while the bills of lading themselves make such reference to that contract as to charge appellant with knowledge of its terms. Thus appellant was chargeable with knowledge that appellee had contracted with the Franklin and Fremont Steamship Companies for carrying [34] all its season’s coal, that the latter two companies had contracted with the Weston Transit Company to carry part of that coal for them, and that through their common manager appellant was assisting the Weston Transit Company in that service. These facts, we. hold, were sufficient to overcome any presumption which may have arisen from the circumstances attending the bills of lading in the premises. The judgment of the District Court is therefore affirmed.